Andrews v. Rosehill

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-MAR-2024
08:54 AM
Dkt. 218 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JIM ANDREWS and THE LANDSCAPE WORKS, INC.,
Plaintiffs-Appellees,
v.
MARCUS ROSEHILL, Individually,
Defendant-Appellant,
and
MARCUS ROSEHILL, as Trustee of the MARCUS F. ROSEHILL
REVOCABLE LIVING TRUST and VIOLET MARIE M. ROSEHILL
REVOCABLE LIVING TRUST; DENNIS J. CLEMENT; MARVI M.
ROSEHILL CHING, Co-Trustee of the MARCUS F. ROSEHILL
REVOCABLE LIVING TRUST and VIOLET MARIE M. ROSEHILL
REVOCABLE LIVING TRUST; JOHN DOES 2-10; DOE CORPORATIONS
1-10; DOE PARTNERSHIPS 1-10; DOE ENTITIES 1-10,
Defendants
(CIVIL NO. 07-1-2393-12)

AND

MARVI M. ROSEHILL CHING and MARCUS ROSEHILL,
Trustees of the MARCUS F. ROSEHILL REVOCABLE LIVING TRUST
and VIOLET MARIE M. ROSEHILL REVOCABLE LIVING TRUST,
Plaintiffs-Appellees,
v.
JIM ANDREWS and THE LANDSCAPE WORKS, INC.,
Defendants-Appellees
(CIVIL NO. 06-1-1982-11)

AND
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

JIM ANDREWS and THE LANDSCAPE WORKS, INC.,
Plaintiffs-Appellees,
v.
MARVI M. ROSEHILL CHING and MARCUS ROSEHILL,
Trustees of the MARCUS F. ROSEHILL REVOCABLE LIVING TRUST
and VIOLET MARIE M. ROSEHILL REVOCABLE LIVING TRUST,
Defendants-Appellees,
and
JOHN DOES 1-10; DOE CORPORATIONS 1-10;
DOE PARTNERSHIPS 1-10; DOE ENTITIES 1-10,
Defendants
(CIVIL NO. 06-1-1976-11)

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting C.J., and Wadsworth and McCullen, JJ.)

This appeal arises from three civil cases that the
Circuit Court of the First Circuit (circuit court) eventually
consolidated: (1) Civil No. 06-1-1976-11; (2) Civil No. 06-1-
1982-11; and (3) Civil No. 07-1-2393-12 (collectively, the
Consolidated Cases). Defendant-Appellant Marcus Rosehill
(Rosehill) appeals from the "Final Judgment in Favor of
Plaintiffs[-Appellees Jim Andrews (Andrews) and The Landscape
Works, Inc. (Landscape)] and Against . . . Rosehill,
Individually" (Judgment), entered on August 31, 2018, in the
circuit court.1/ Rosehill contends that the circuit court erred
in entering the Judgment because: (1) the court lacked subject
matter jurisdiction over the Consolidated Cases; and (2) even if
the court had subject matter jurisdiction, Andrews's claims
against Rosehill were precluded by the doctrine of res judicata.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Rosehill's contentions as follows and affirm.
(1) Rosehill contends that the circuit court lacked
subject matter jurisdiction over Andrews's claims against
Rosehill, because those claims were related to claims that had

1/
The Honorable Keith K. Hiraoka presided.

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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

been litigated to judgment in a prior district court summary
possession action, which Andrews had appealed to this court.
Rosehill appears to argue that the filing of the appeal from the
district court action divested the circuit court of jurisdiction
over the Consolidated Cases that eventually spawned the Judgment.
According to Rosehill, the Judgment is therefore void.
Resolving this jurisdictional issue requires a brief
review of the parties' lengthy and complicated litigation
history. It appears that history began on August 31, 2006, when
Rosehill, as "Trustee of the Marcus F. Rosehill Revocable Living
Trust and Violet Marie M. Revocable Living Trust"2/ (Trustee
Rosehill and the Trusts), filed a summary possession action,
which also sought damages, against "Jim Andrews dba The Landscape
Works" in the District Court of the First Circuit (district
court). On October 6, 2006, Andrews filed an answer, a demand
for a jury trial, and a counterclaim based on a purported oral
option agreement to purchase the subject property (Property), and
alleging, among other things, unjust enrichment for the value of
the commercial trees and palms on the Property. On the same
date, Andrews filed a motion to dismiss the complaint and to
transfer the case to the circuit court, alleging that title was
at issue because of the purported oral agreement. The motion was
denied on October 26, 2006. On November 8, 2006, the district
court conducted a trial on the summary possession claim, found
that Andrews was on a month-to-month lease and had not paid rent
since 1996, and stated that the court would issue a writ of
possession forthwith.
The effect of the jury demand and counterclaim was to
sever Trustee Rosehill's damages claims on back rent and the
claims asserted in the counterclaim for jury trial in the circuit
court, while the district court retained jurisdiction over the
summary possession part of the case. See Lum v. Sun, 70 Hawai#i
288, 297-98, 769 P.2d 1091, 1097 (1989). On November 14, 2006,
the district court committed the damages claims for trial in the
circuit court, and on November 15, 2006, the matter was docketed

2/
It appears that Marcus F. Rosehill and Violet Marie M. Rosehill
were Rosehill's parents.

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as Civil No. 06-1-1982-11.
On November 14, 2006, Andrews and Landscape filed a
complaint for declaratory judgment against Trustee Rosehill in
the circuit court, initiating Civil No. 06-1-1976-11. The
complaint requested a stay of execution of the district court's
anticipated judgment for possession and writ of possession to
prevent forfeiture of Andrews's commercial tree nursery business.
The complaint shares substantial similarities with the district
court counterclaim that subsequently became Civil No. 06-1-1982-
11.
On December 4, 2006, the district court entered a
judgment for possession and also issued a writ of possession
(with an effective date of November 8, 2006) in favor of Trustee
Rosehill and against Andrews. On January 3, 2007, Andrews filed
a notice of appeal from the judgment of possession, initiating
Appellate Case No. 28350. On or about January 5, 2007, the writ
of possession was executed.
On April 26, 2007, the circuit court consolidated
Civil Nos. 06-1-1976-11 and 06-1-1982-11.
On December 19, 2007, Andrews and Landscape filed a new
complaint in the Circuit Court against Rosehill, individually and
as trustee of the Trusts, and process server Dennis J. Clement
(Clement), seeking the return of Andrews's personal property and
animals, as well as damages, related to the execution of the writ
of possession. The new complaint initiated Civil No. 07-1-2393-
12.
On December 3, 2008, the circuit court, among other
things, granted the motion of Marvi M. Rosehill Ching, as co-
trustee of the Trusts (Trustee Ching), to intervene in the
consolidated matter comprising Civil Nos. 06-1-1976-11 and 06-1-
1982-11.
On March 17, 2010, the circuit court consolidated Civil
No. 07-1-2393-12 with the previously consolidated Civil Nos. 06-
1-1976-11 and 06-1-1982-11.
On January 5, 2011, in a separate probate action by
Trustee Ching against Rosehill, Rosehill was removed as a trustee
of the Trusts, leaving Ching as the sole trustee of the Trusts.

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On January 6, 2011, Andrews and Landscape filed a first
amended complaint in the Consolidated Cases, which included
Trustee Ching as a co-defendant, and added claims against
Rosehill, "[i]ndividually, and as [t]rustee[,]" for fraud
(Twelfth Claim), misrepresentation (Thirteenth Claim), and abuse
of process (Fourteenth Claim) (collectively, the Remaining
Claims).
It appears that at a March 18, 2011 mediation, all of
the claims among the parties in the Consolidated Cases were
settled, except for the Remaining Claims against Rosehill
individually in Civil No. 07-1-2393-12. On August 5, 2011,
following a July 1, 2011 hearing, the circuit court entered an
order granting Trustee Ching's motion for determination of a
good-faith settlement of all claims between Trustee Ching and
Andrews, Landscape, Clement, and other parties.
At a June 16, 2011 hearing, the circuit court granted
Andrews and Landscape's motion for summary judgment on the
Remaining Claims. The court's August 4, 2011 written order
concluded, among other things, that Rosehill was individually
liable on the Remaining Claims, leaving the issue of damages for
trial.
On July 7, 2011, Andrews and Landscape filed a motion
in this court to withdraw the appeal in Appellate Case No. 28350,
stating that the parties had reached a settlement under which
Andrews and Landscape would withdraw the appeal. On July 22,
2011, this court granted the motion and dismissed the appeal.
On July 11, 2011, a jury trial to determine damages on
the Remaining Claims against Rosehill began, and on July 13,
2011, the jury awarded Andrews and Landscape damages in the
amount of $2.5 million against Rosehill. On September 1, 2011,
the circuit court entered final judgment in favor of Andrews and
Landscape and against Rosehill, individually, in the amount of
$2.5 million (September 1, 2011 Judgment).
On March 29, 2017, Rosehill filed a motion to set aside
or vacate the September 1, 2011 Judgment, pursuant to Hawai#i
Rules of Civil Procedure Rule 60(b). Andrews and Landscape filed
their opposition on April 25, 2017. The circuit court heard the

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motion on May 3, 2017, and entered an order denying the motion on
June 28, 2017. The Judgment was entered on August 31, 2018.
As explained above, Rosehill now argues that the
Judgement is void because the filing of the appeal in the summary
possession action divested the Circuit Court of jurisdiction over
the Consolidated Cases.
Rosehill's argument is without merit. The three claims
that were tried to a jury and that resulted in the $2.5 million
judgment against Rosehill, i.e., the Remaining Claims in Civil
No. 07-1-2393-12, were not alleged in Rosehill's summary
possession complaint or in Andrews's counterclaim in the district
court. Rather, the Remaining Claims appear to have arisen when
and after the writ of possession was executed. Because these
claims were not part of the district court summary possession
action, they were not affected by Andrews's appeal from the
judgment for possession in that action. In other words,
Andrews's appeal from the district court's judgment did not
divest the circuit court of jurisdiction over the claims that
actually went to trial. The circuit court did not err in
exercising jurisdiction over these claims.
(2) Rosehill contends that even if the court had
subject matter jurisdiction, Andrews's claims against Rosehill
were precluded by the doctrine of res judicata.
The party asserting res judicata, or claim preclusion,
has the burden of establishing that: (1) there was a final
judgment on the merits; (2) the parties to the action in question
are the same or in privity with the parties in the original suit;
and (3) the claim decided in the original suit is identical to
the one presented in the action in question. See Bremer v.
Weeks, 104 Hawai#i 43, 54, 85 P.3d 150, 161 (2004). Here, for
the reasons previously stated, the claim decided in the summary
possession action is not identical to the three claims that were
presented and tried to a jury, resulting in the Judgment against
Rosehill. Rosehill's argument based on res judicata is therefore
without merit.
For the reasons discussed above, the "Final Judgment
in Favor of Plaintiffs and Against Defendant Marcus Rosehill,

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Individually," entered on August 31, 2018, in the Circuit Court
of the First Circuit, is affirmed.

DATED: Honolulu, Hawai#i, March 13, 2024.

On the briefs:
/s/ Katherine G. Leonard
Frederick J. Arensmeyer Acting Chief Judge
for Defendant-Appellant.

Ryan G.S. Au /s/ Clyde J. Wadsworth
for Plaintiffs/Defendants- Associate Judge
Appellees.

/s/ Sonja M.P. McCullen
Associate Judge

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